YADAVALLI THIMMARAJU Vs. SAIT RAMACHANDAR SEVANARAIN BANG

JUDGEMENT

(1.) While the plaintiff has preferred the second appeal in respect of the construction on ABCD wall the defendant has filed a memorandum of cross-objections in regard to the superstructure on EFGH wall. The first question strenuously contended by Shri Suryaprakasam, learned advocate for the appellants was that his right to light and air is affected by the construction on the ABCD wall. In paragraph 7 of the judgment of the lower appellate Court it is found that the plaintiffs have got by prescription the easementary right to the passage of light and air to their house through the windows and doors in the northern wall of their house from the first defendant's site to the north of the compound wall.

(2.) The next question is whether as a result of the construction effected by the respondent there is a diminution of light and air and whether that diminution amounts to an actionable nuisance. In Paul v. Robson, (1914) 27 M.L.J. 117 : L.R. 41 I.A. 180 : I.L.R. 42 Cal. 46 (P.C.). Lord Moulton summarised the opinion of the Lord Chancellor in Colls v. Home and Colonial Stores Ltd., L.R. (1904) A.C. 179. in the following terms :

(3.) While the trial Court granted a mandatory injunction the lower appellate Court took a different view. The Subordinate Judge based his conclusion on the evidence of D.W. 3, an Engineer examined for the first time in the lower appellate Court. He deposed that there was a manduva adjacent to the hall and the room with the result that there was sufficient air and light passing to the hall and the room. D.W. 1 deposed that if a line is drawn from the base of the window at 450 it cuts the coping of the existing compound wall. It is therefore clear from the finding that though there is bound to be a diminution of light and air it is not such as to cut off the entire light and cause nuisance to the plaintiff. Shri Suryaprakasam the learned advocate for the appellants contended that the decision of the lower appellate Court is vitiated inasmuch as it did not take into account the personal inspection made by the District Munsif. Unfortunately the Inspection Note of the District Munsif is not available and I am not in a position to say whether the conclusion based on his personal inspection is correct.